THE ALTERNATIVE TO EVER MORE RULES & REGULATIONS
A persistent concern and complaint about the direction society has been taking almost everywhere is the proliferation of rules and regulations, whether in the form of laws or of codes of conduct. Yet whenever something goes grievously wrong there is a call for more of the same. Or else for the culpable to be brought to book. It is not only that, for a variety of reasons, this approach is doomed to failure. It is also subversive of the strength that is needed to combat the ills it pretends to remedy. A muscle that is not exercised falls into disuse. Eventually all walk on crutches instead of upright. Compliance kills discretion.
There are various reasons that a surfeit of rules (laws, codes) run into trouble. One is that it is not always clear which rule to apply, or rather, what the hierarchy of the rules is. So rules are needed to spell this out. But the diversity of situations means that these rules – or principles, as they then become – in turn fail to be sufficiently unambiguous. In fact, the hierarchy of rules is ever changing. At a certain point the number of rules and their interactions becomes so great that no-one has a complete overview.
There is a subtle shift from justification for actions on the basis of adherence to rules to thinking and explanation on the basis of reasons. Whereas being in breach of a rule may invite condemnation, it will be readily accepted that any one reason may be overturned by other considerations. But this is not where we are, or where we seem to be headed. True, there is a solid principle of Comply Or Explain, but it is propagated too little. And even within the area of explanation there may be backsliding into the autistic mindset of correctness. The persons in receipt of the explanation may themselves not have the moral or intellectual wherewithal to exercise proper judgement. There is contention about the role of absolutes and the extent to which matters are context-dependent, which is mistakenly thought to make morals relative and therefore arbitrary.
Many of the things that go awry may be attributed to the system. Each does their own, but there is no-one in charge with a view of the grand scheme of things. But it is also the case that individuals with power of discretion at diverse points can hide behind the opacity of the rules and the difficulty of detection to wreak havoc. They may do this from inertia, or from malice, or to further their own ends.
This phenomenon is also associated with the anonymity which is inherent in our social systems. Mass society, at all levels, means that the reputational checks which operate in a small-scale society have ceased to apply. Nor do people now much suffer from the fear of God. There is a further and novel complication with the advent of social media such that slander is easy and there is scarcely any defence against it.
In theory, there is still the law. But legal process is slow, mostly unaffordable, and its outcome uncertain even when the case is solid. Civil legal process presupposes that there is a plaintiff (complainant). But even an identifiable victim may, understandably, be reluctant to pursue matters. Plus the penalties are often derisory. Hence the law is only effective, if at all, for those misdeeds and misdemeanours that come under its radar. There is no end of poor and indeed atrocious conduct that cannot, practically, be pursued in the courts or receive proper chastisement there.
It is this background that gave rise a few decades ago to movements of business and professional ethics. But these have largely contented themselves with elaborating codes of conduct, with academics pontificating and consultants selling. They too have fallen into the trap of recourse to conformism in the shape of the buzzword Compliance. Creating crutches for beggar-thy-neighbour cripples.
Having set out the background, I come to the constructive proposal which is the purpose of this piece.
A cornerstone of Anglo-Saxon culture is the principle of checks & balances, i.e. of the dispersion of power. A further cornerstone is the principle of periodically returning power to the people, i.e. the mass of the population which do not occupy high positions in a hierarchy or are members of an elite. This is seen in the jury system as well as in universal suffrage. But there is also the ancient principle of people being judged by their peers, i.e. by persons with similar standing, qualifications or background.
Much of what goes wrong is attributable to individuals acting in a professional capacity, whether conscientiously following procedures and flouting common sense or abusing their power and de facto anonymity. So we are talking about a class of professional actors.
I understand the word “professional” to apply now to very many jobs and functions which were previously unheard of. They are, broadly speaking, middle-class occupations with corresponding remuneration and standing. Some are emergent. There are countless associations catering to these new and niche professions.
Traditionally, professionals have regulated their affairs internally with the law of the land doing the heavy-lifting. In medieval times, clergy regulated clergy, and subsequently lawyers lawyers, medics medics, and so on. Granted, a few arrangements have come to allow a look-in from outsiders.
There are two difficulties with this arrangement. One is that the professionals concerned will be partial to their own. The other is the opposite, that they may be vindictive of a fellow professional who does not toe the line or share their closed shop mentality.
The proposal here is that (i) the work of all professions and professionals must be subject to oversight by other professions. For example, the work of corporate lawyers might be subject to review by logicians, mathematicians and linguists. (ii) For professional work, membership of one of a narrow choice of relevant associations should be mandatory. Furthermore, (iii) for each & every decision there must be an identifiable individual who signs responsible for that decision. Not, as I understand to be largely the case at present, a department or a process. “Identifiable” does not mean “publicly identified”. There would, hence, be as little collective responsibility as possible.
In any professional capacity there will be judgement calls. People fall down here for two reasons. Many will not have developed sufficiently the capacity for judgement because what they have been trained to do is compliance. Judgement is a matter of maturity (experience, perceptiveness, exchange, time to reflect). A quite different cause of people failing to do right is a matter of character. There are vested interests and generally the matter of people failing to be impartial, or rather, of being excessively partial to their own.
We all make mistakes and therefore, when individual errors of judgement come to light, they must be treated with some indulgence. However, if a pattern of misjudgement emerges, or the volume of misjudgements is excessive, the individual concerned must be called to account.
This would be before a properly constituted ethics committee. Together with likely critics, I urge caution. The emphasis is on “properly constituted”. Media reports from diverse quarters would seem to indicate that many “ethics” committees are anything but. Some, apparently, are tribunals for political correctness and conventional prejudice. This is the perennial problem of who guards the guardians.
Not least as a counterweight to in-group imbalance, such ethics committees must be composed substantially of members of other professions. Peers. Whether fifty-fifty or another mix is a matter for another day. There would be other safeguards, too.
The key element is that it must be feasible for professionals (including bureaucrats) who have a record of causing mayhem to be called to account. They might produce acceptable reasons for their decisions, in which case it would be a learning experience for the ethics committee; or they might concede misjudgement and explain how they are improving. But in extreme cases they would be subject to suspension or exclusion from their professional body. And by no longer being a member of a professional body they would lose (temporarily or permanently) their employment. This might apply, for example, to individual civil servants responsible for high-profile cases of recklessness as much as to executives in mismanaged companies. There must be a fear of loss of vocation and hard-won qualifications greater than any desire for advancement or fitting in.
There is often talk of the failings of top-down hierarchies with the implication that bottom-up is needed. But changing the system is held to be impossible. Under the above proposal, it would be feasible for professional bodies to take the initiative and move in the direction indicated. Hence bottom-up. There would of course need to be political acquiescence but only to the extent of there being official recognition of the decisions of professional associations, which could be facilitated by skilful public relations and pressure on the political and managerial actors. None of this can happen overnight. We are talking about generational change.
Summarising: No sets of rules or codes can do justice to the complexity of all decisions to be taken at the various levels. This does not mean that they do not have a role to play. Historical and societal changes have occurred without appreciation that these make other changes necessary. Since we no longer work much in wider and life-long communities where we are known and therefore must take care of our reputation, i.e. since much work is done anonymously or else in contexts where poor (or indeed good) conduct is little registered and rapidly forgotten, traditional mechanisms of oversight have been eroded. Effective penalties (whether reputational, monetary or employment-related) are lacking except for high-profile and extreme cases. Such cases would arise less if there were novel mechanisms to guide or coax people long before criminality or gross misconduct arose.
Note that such a change in structures would make it possible to reverse the proliferation of laws and regulations as well as of the codes of conduct which encourage the mindlessness of much political correctness. Professionals would be constrained to take personal responsibility for their actions, encouraged to take the initiative and be immured against unconscionable pressure from superiors. There would be a restoration and reinforcement of ethics as a counterweight to legalism.
“Ethics” must be understood in terms entirely different to the logic of rules & regulations, which (except for the simple-minded) are stepping stones to ethical maturity and not stones for lapidation. In rare cases one might envisage people being called to account for compliance when they should have had the moral courage to set rules aside. Moral courage, incidentally, may mean risking derision and contempt from one’s fellow men as well as one’s superiors. It is the rare virtue that distinguishes western culture, with its figureheads Socrates and Jesus, despised rebels as impotent as Old Testament prophets or Protestant and Catholic martyrs post-Reformation. It is by drawing on such defining virtues and on asymmetric checks & balances that the West can survive and thrive despite having ceded its technology to other nations and cultures.
EXAMPLES OF HOW TOUGH PROFESSIONAL OVERSIGHT MIGHT REPLACE RULES AND REGULATIONS
The argument above focussed on generalities. Not least because the range of situations where there is a need for remedy is too diverse and many will involve specialisms that most people will be entirely unfamiliar with. Here are two examples where, even if now respite is on the way through codes or the like, unacceptable conduct and foul habits could be or have been nipped in the bud.
Illustrative example 1. A cartoon depicts a well-endowed lady saying that, as there was a special offer with the second at half-price, she had gone for two implants. Regrettably, satire is too weak a weapon and the cuplrits cannot be mocked in person or put in the stocks. This kind of sales tactic imposes an artificial choice on consumers and disadvantages those least able to take advantage of the apparent bargain, such as the penniless, or those unable to transport or store much, or travellers. No, there is no need for a code banning it, let alone a government regulation. There will be someone in the supermarket management who thought this up and ordered the plastic to bind containers of whatever together with a dedicated barcode in order to boost their sales figures and bonus or else to pander to their superior or seek promotion. We are not talking about lemons in a net of five, some intelligently less ripe than others. Nor are we not talking about cherries being cheap because of a bumper crop.
Illustrative example 2. For years, it emerges, loyal customers have been charged more than new ones. This is allegedly their own fault for not shopping around or comparing prices every twelve months. There was a time when regular or old clients received a discount, or were spared price rises, and this was understood to be as it should be. Now, it seems, people cannot get on with their lives but have to negotiate each and every service, utility or other purchase. Again, no need for a code to be debated endlessly. Instead, under the proposed dispensation, there will be an identifiable individual who can be held responsible.
That person, with a good salary and qualifications to match, will need to be a member of the association of supermarket managers or salesforce professionals or whatever. They would have to explain themselves to a committee composed of the likes of an architect, medic, social worker, accountant, teacher, translator, paralegal, etc., some of them recently retired. Gross or persistent violation of what is considered decent behaviour, as determined by due process, would remove them from their professional association and therefore their employment. There would a learning curve.
Illustrative example 3
"More than 100 failing care homes are being run by directors who have been forced to shut down others after residents died or were neglected, the Sunday Telegraph can reveal. An investigation by this newspaper found 121 care homes - rated ‘inadequate’ or ‘requires improvement’ by the Care Quality Commission (CQC) - which are run by people who have been forced to close other homes after the care regulator found alarming incidents of neglect. Former ministers and MPs last night called for owners of failed homes to be banned from operating in the care sector. Families said they would never have put their loved ones in homes had they known the directors’ history.
Care homes are inspected by the CQC, but the regulator does not publish a list of owners and their past or current other businesses. The regulator can only take enforcement action against a company, not the directors.
Relatives of elderly residents say it is difficult to find out owners' track records as often directors operate multiple care homes under several different company names. When a care home is closed down the company that runs it is often wound up.
Former health minister Norman Lamb MP said directors of care homes that fail "have no place in the care sector". He is writing to Health Secretary Matt Hancock in light of The Telegraph’s investigation “to ask him to explore what new powers may be needed."
Under the proposal such rogue directors would have been detected early and found themselves debarred by being excluded from the relevant professional associations.